Gurkha's court battle

Kyt · Sep 12, 2008

Nepal: Gurkha veterans' toughest battle - for the right to live in Britain | UK news | The Guardian

Gyanendra Rai gazes at the smoke as it curls upwards from the funeral pyre and thins out over the rooftops of Pashuputi Nath, the world's most sacred Hindu temple.

Rai thought of this place when artillery shrapnel chewed into the side of his back and right shoulder while he was fighting for the British army in the Falkland Islands: he imagined his body lying there on the cremation ghat.

On June 11 1982, Lance Corporal Rai - a drummer with the 1st Battalion, 7th Gurkha Rifles - almost lost his life during the final assault on Port Stanley. Seriously injured, he received five pints of blood donated by British soldiers, and the skin that was grafted upon the cavernous hole in his back was taken from one of his fallen comrades.

Rai still struggles from the pain in his side, and when it thunders his mind scares itself back to that terrifying day. Now, however, Rai is involved in a battle not with his demons but the British government. He is leading a claim against the Home Office's refusal to grant settlement to Gurkha veterans who served Britain but retired from the regiment before July 1997 because they "failed to demonstrate strong ties to the United Kingdom". Next Tuesday, the case of 15 former Gurkhas and Gurkha widows - representing more than 2,000 of their former colleagues - will return to the high court in London.

A team of human rights lawyers is challenging the lawfulness of the decisions to refuse these men entry visas to the UK. It wants equal rights for those who retired before the regiment's headquarters moved from Hong Kong to the UK following the 1997 handover of the colony to China.

Almost 1,000 Gurkha veterans - many with more than two decades of exemplary service - have been refused visa clearance by British embassies in Kathmandu, Hong Kong and Macau on the grounds that they do not have strong enough ties with the UK. The government argues that since they never lived in the UK, they have no real links with the country. It is estimated that between 7,000 and 10,000 more Gurkha veterans would settle in Britain should they win the case. Rai, who served as a drummer and machine gunner for 13 years and 81 days, asked for a settlement visa because he seeks medical treatment - unavailable in Nepal - for his physical wound and the mental scars he says still shake him. His application was refused in October 2006.

"I needed blood and flesh for a skin graft and my fellow British soldiers gave me that. So, how can they say I don't have strong ties? I have literally English blood running in my body. I have played drums at the Edinburgh military tattoo, at Buckingham Palace and St James's Palace. I have played for Prince Charles and Princess Anne," said Rai. "When we are recruited we touch the union jack and we make an oath of allegiance to the UK and our Queen."

On Monday, a delegation of Gurkhas will hand in a petition to Downing Street in protest at the government's position, before walking to the Gurkha Memorial in Whitehall to pay tribute to their fallen comrades. On Tuesday, they will be joined outside the high court by the actor Joanna Lumley, whose father served with the Gurkhas for 30 years. She said: "Like so many people in Britain I am ashamed at how successive governments have failed these magnificent and loyal soldiers. The overwhelming wish of the British is to allow them to live with us if they so choose. I sincerely hope the court finds in their favour."

Martin Howe is one of the British lawyers representing these men. This summer, he and his colleagues travelled across Nepal to hear the Gurkhas' stories. At one rally, organised by the Gurkha Army Ex-Servicemen's Organisation, which is supporting the case, more than 1,000 former Gurkhas and their families were gathered in a hall in Pokhara, a town that nestles in the foothills of the Annapurna massif, to hear him speak.

"You have travelled sometimes days, certainly hours to come to this meeting today. You have one last great battle, but this time it is with the pen and not the sword. You are involved in an epic fight for equality and justice, and that is a fight for justice for all Gurkhas and not just those who retired after 1 July 1997," said Howe.

A pot of lentils lies simmering in the fire which burns in a hole in the mud-baked floor of Ratna Bahadur Gurung's hilltop home. His brother pulls the rope on a primitive churn, turning buffalo milk into ghee. They are subsistence farmers and the leftover ghee that he sells to his neighbours in the village of Lamsekhor provides Gurung with "pocket money". In the hard terrain of step-terraced fields, they farm millet, maize, rice and cucumbers. Theirs is a meagre existence; there is no toilet or electricity in the house and Gurung sleeps on a worn rattan mattress on the outside porch, beside a basket of chicks.

In the face of this hardship, Gurung borrowed £500 - the equivalent of five years' average salary in Nepal - to pay the visa fee required by VFS Global, a company employed by the British embassy in Kathmandu. He hoped that he would be allowed to travel to the UK, where he has family, but in February 2007 his application was refused. Now he has joined the campaign to achieve the same rights for all Gurkhas.

"I just want to tell the British people that all the Gurkha soldiers are the same and that the government should treat them the same way and give them the visa without dividing them with 1997," said Gurung. Lifting the knife he uses in his fields, he motions with it across his long grey beard: "I started growing this when they refused my visa to go to Britain. I will cut this beard when I get the visa and then I'll go to UK."

Lalit Gurung lives in Pokhara but could not make the town hall meeting with his lawyers. He is so sick he has to be carried downstairs on his son's back should he wish to leave the first-floor flat in which he and his family live. The 81-year-old former Gurkha gave 24 years' service to Britain, and was promoted through the ranks to captain. He was awarded the Military Cross for bravery for his part in fierce fighting during the revolution in Brunei in 1963. His three younger brothers all served under his command - all four Gurungs joining the Gurkhas because their father and grandfather had done so before them.

On the walls of his living room, Gurung displays images of the day he was awarded the MC by Prince Philip, of his meeting with Denis Healey, of the serried rows of himself and his fellow officers after they completed the small arms course at Hythe barracks in Kent in 1958. He talks with pride of his commanding officer, Sir Jeremy "JJ" Moore, who also received the MC for the same battle as Gurung and went on to receive the surrender of Argentine forces on the Falklands.

Twelve years ago, a stroke left Gurung paralysed down one side of his body. He is now diabetic, has partial vision, sores, ulcers and fractures. He has to be helped to the toilet. In a medical report, Gurung's doctors say he "would definitely have a better quality of life if treated and rehabilitated in the UK".

It says: "Facilities to manage such a case in Nepal are not perfect and of limited quality. Relatively better facilities are available only in private hospitals that are very expensive and that the patient may not be able to afford. The patient has unfortunately been getting additional complications such as sores, ulcers, fractures and blindness due to lack of proper care and support."

Gurung was forced to make an arduous seven-hour car journey to Kathmandu to apply for a visa to travel to the UK for medical treatment. He could not afford the £500 fee and lodged the application without it, asking the entry clearance officer to use her discretionary powers to admit him. The refusal to even consider the case without the fee is being challenged in a British court in a test case which may relieve the financial burden for all Gurkhas.

Gurung weeps and beats his walking stick on the floor as he speaks of his years as a Gurkha and how he feels betrayed by the imposition of the 1997 cut-off date. He spent almost a year in Britain, and took language courses. Now, his daughter lives there and he feels betrayed that he cannot.

"Our forefathers fought the first world war and we fought the second world war and we are the same as the rest of the British army, we don't consider ourselves to be different. We are still waving the British flag, the union jack. We Gurkhas and the British fought and won against the Germans and Japan as well. We gave so many lives for them, for the British government. But when we are so much in need of help, there isn't a single person to help us. That is what I want to say to them. Even when we are so sick they don't care. We have got nothing. We fought for the British king and the British people but now we are in such a poor condition. They are not taking care of us and there is no benefit for us. I want all the British citizens to know about our poor condition."

Men like Lalit Gurung have been associated with the British army for almost 200 years - at that time the two were foes following raids by Nepalese fighters into British territory in India. After waging war on Nepal, a British peace treaty was followed by the need for volunteers for the East India Company's army, which then formed the first Gurkha Brigade.

By the first world war, 100,000 Gurkhas had enlisted and during the second world war there were 40 Gurkha battalions in British service. During these two wars, and in other conflicts, they suffered 45,000 casualties. Gurkhas have won 26 Victoria Crosses - 13 by Nepalese and 13 by their British officers, more than any other regiment.

In 1931, Sir Ralph Turner wrote of the Gurkhas with whom he had served: "Uncomplaining, you endure hunger and thirst and wounds; and at the last your unwavering lines disappear into the smoke and wrath of battle. Bravest of the brave, most generous of the generous, never had a country more faithful friends than you."

The Brigade of Gurkhas was fully integrated into the British army in 1947. Over the years it has gained a reputation as a formidable fighting force. Recently, Gurkhas have served in Iraq, Afghanistan, Bosnia, Kosovo and Sierra Leone.

This year, 50 Gurkhas handed in their long service and good conduct medals in protest at the 1997 cut-off date. The campaign to allow settlement for all Gurkhas has cross-party support - Nick Clegg, the Liberal Democrat leader, asked Gordon Brown, at prime minister's questions "why on Earth he believes that Gurkhas who served ... after 1997 are worth British citizenship but those who served before that date should be deported?" Many Gurkha veterans have become involved not because they wish to live in the UK but as a matter of principle.

A petition lodged on the Downing Street website which calls on "the prime minister to give all ex-Gurkha soldiers and their families who have served our country British citizenship on leaving the service" has so far gathered 27,668 signatures.

The Ministry of Defence argues that it was not until the brigade became UK-based that Gurkhas developed sufficient ties with the country. A spokesman for the Home Office told the Guardian: "The government has tried to be as fair as possible in its treatment of armed forces veterans - including ex-Gurkhas.

"Under the immigration rules, the grant of settlement in the UK is normally linked to an extended period of residence in the UK or the presence of a close family tie. Gurkhas discharged before 1 July 1997 would not normally have developed strong residential ties with the UK. This was the date that the Gurkhas became a UK-based force on completion of the withdrawal from Hong Kong.

"Whenever there are strong reasons why settlement in the UK is appropriate any Gurkha can apply for settlement on a discretionary basis no matter when they were discharged. Where a person has been refused further leave, there is a full right of appeal against the decision to the independent courts."

Tul Bahadur Pun, 85, was awarded the Victoria Cross and 10 other medals but was initially refused entry to the UK. But in June 2007, the decision was overturned due to the "exceptional" nature of the case.

Since then VC Pun [as he is commonly known] has had several operations, some for cataracts, and for the first time in 14 years can see the majestic Dhaulagiri mountain from the rooftop of his home in Pokhara.

With a settlement visa, Pun resides only some of the time in the UK. "I am getting better physically now that I am able to travel to the UK for treatment. But I cannot live there for long - it's really cold and I have a really hard time when it's cold. It is better for my health over there, here it is not good."

For Lalit Gurung, the return journey to Kathmandu, and the days and days of waiting for a decision, took its toll. He is now sicker and more frustrated, ashamed to be carried in and out of the visa office and his home like a baby.

Clutching his MC, arranged beside his other campaign medals, he said: "The British citizens are happy and proud and they go around waving their flag because of whom? It's because of the Gurkhas, generations of Gurkhas."
Backstory

Gurkhas have served the British crown for almost two centuries. They became part of the British army following Indian independence in 1947. The brigade suffered 45,000 casualties during the two world wars and in other conflicts. Nepalese Gurkhas have won 13 Victoria Crosses, and their British officers have won 13 - more than any other regiment. Gurkhas have served recently in Iraq, Afghanistan, Bosnia, Kosovo and Sierra Leone. The Gurkha motto is "Better to die than to live a coward".
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Antipodean Andy · Sep 13, 2008

I know the Queen keeps out of the day to day running of the country but you'd think she'd have the clout to pull some strings or grab Mr Brown's attention at their weekly meeting and say "Gurkhas are British citizens...got it?" Or words to that effect (and no offence to either party).

Antipodean Andy · Sep 16, 2008

Gurkhas demand right to stay in Britain | NEWS.com.au

HUNDREDS of former Nepalese Gurkha soldiers marched on London's High Court today to press their demand for the right to settle in Britain, as a judge began a judicial review of their legal challenge.

Indian-born British actress Joanna Lumley, whose father fought alongside the Gurkhas, joined their protest outside the court before a judge began hearing a two-day legal action which affects 2000 former Gurkhas.

She knelt before two veteran Gurkhas in wheelchairs to wish them luck in the test case being brought by five Gurkhas and a widow who have been refused the right to stay in Britain.

"My own father served with the Gurkhas for 30 years. Like so many people in Britain, I am ashamed at how successive governments have failed these magnificent and loyal soldiers," said Lumley.

"I want to see justice done," she told Lachhiman Gurung, 91, and Tul Bahadur Pun, 86, who served with her father in Burma during World War II.

A lawyer representing the Gurkhas said at the start of the hearing that the government's refusal to automatically allow them to live in Britain was "indefensible".

A judge last month granted the veterans permission for an urgent judicial review of the lawfulness of Britain's settlement policy for Gurkhas, who have fought for the British army for nearly 200 years.

Gurkhas who retired after 1997, when their base was moved from Hong Kong to England, can stay in Britain.

But those who retired earlier and whose individual cases were decided by visa officials in Kathmandu and Hong Kong must apply for permission to stay and may be refused and deported.

All other foreign soldiers in the British army have a right to settle in Britain after four years of service anywhere in the world.

Kau Prasad Pun, 53, was granted a British residential visa after 18 years' service in the Gurkhas, but he said he had joined the London protest to support his colleagues who were not allowed to settle in the country they served.

"We are being discriminated against," he said. "We enlisted to kill the enemies of Britain but now Britain is killing us."

The Gurkhas' lawyer, Edward Fitzgerald, told the court that four of the plaintiffs were refused the right to stay in Britain on the grounds they lack "strong ties" with the country.

"However distant their country of origin, whatever the location of their headquarters at a particular moment in history, however remote the battlefields on which they fought and risked their lives and shed their blood, all the Gurkha soldiers, past and present, were fighting for this country," Mr Fitzgerald said.

"That gives them all equally strong ties to this country."

Around 200,000 Gurkhas fought for Britain in World Wars I and II, and about 3500 currently serve in the British army, including in Afghanistan and Iraq. More than 45,000 have died serving Britain.

The Gurkhas, who are renowned for their bravery and ferocious fighting skills, have also struggled for many years for equal pension rights as their British army counterparts.

Three Gurkhas who lost a court challenge on pensions in July this year are taking their case to the Court of Appeal next month.

That case related to an offer made by the Ministry of Defence last year to transfer pensions benefits from the far lower Gurkha Pension Scheme into the more mainstream Armed Forces Pension Schemes.

The defence ministry offered to transfer the value of the GPS pensions into the AFPS for periods of military service after 1997.

Lawyers argued this penalised older retired Gurkhas, saying the years of service of those who signed up before that date but retired afterwards were valued at between 24 per cent and 36 per cent of British rates.

Several Gurkhas said they currently receive a monthly pension of about 18,000 Nepalese rupees 173 ($310.17).
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Kyt · Sep 17, 2008

It is excellent news that someone like Lumley is supporting them. It was also reported on the BBC:

BBC NEWS | England | Lumley joins Gurkha fight

The news report shows Virginia McKenna also supporting them - her husband William Lindon-Travers (of Born Free fame) was an officer in the Gurkhas

Kyt · Sep 17, 2008

Emotional Joanna Lumley reveals family link to Gurkhas' battle

Well-known as a charity campaigner, British actress Joanna Lumley has turned her attention to a cause close to her heart – the right of Gurkha soldiers to stay in Britain. The Absolutely Fabulous star gave her support to the veterans outside the High Court in London on Tuesday before their latest round of their legal battle.

Joanna, who was given a guard of honour as she arrived, revealed she has a special link to the cause. Her father, Major James Rutherford Lumley, served with the 6th Gurkha Rifles during the Second World War.

In a particularly poignant moment, the actress struggled to hold back her emotions as she met VC winners Lachhiman Gurung, 91, who had served with her father, and 86-year-old Tul Bahadur Pun, who saved her dad's life as they fought together in Burma and whose photograph hung in her family’s home.

"Ever since I was a small child, this man has been my hero," the 62-year-old beauty said.
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Joanna struggles to contain her emotions as she meets her "hero", Victoria Cross holder Tul Bahadur Pun, who saved her father's life in Burma and is now fighting for the right of retired Gurkhas to settle in the UK

Antipodean Andy · Sep 17, 2008

In a particularly poignant moment, the actress struggled to hold back her emotions as she met VC winners Lachhiman Gurung, 91, who had served with her father, and 86-year-old Tul Bahadur Pun, who saved her dad's life as they fought together in Burma and whose photograph hung in her family’s home.
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Wow..........

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Gurkha's court battle

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